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Activists call for Ohio justice to recuse herself on abortion case

Justice Kennedy spoke at a Greater Toledo Right to Life event Friday

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    The Thomas J. Moyer Ohio Judicial Center building, center, white, is seen in Columbus.

    ASSOCIATED PRESS

  • Ohio-Supreme-Court-Justice-Sharon-Kennedy

    Justice Kennedy

An Ohio abortion-rights group is demanding Ohio Supreme Court Justice Sharon Kennedy step down from a court case that could decide the fate of Toledo’s only remaining abortion clinic.

Kellie Copeland, executive director of NARAL Pro-Choice Ohio, called for Justice Kennedy’s recusal from deciding a lower court’s ruling on state regulations governing Capital Care Network in Toledo following a speech she gave Friday to the Greater Toledo Right to Life.

Justice Kennedy was the keynote speaker at the anti-abortion organization’s annual legislative briefing breakfast in Perrysburg French Quarter. About 185 people paid $30 each to attend the fund-raiser, at which the justice agreed in December to appear, a spokesman said.

Ms. Copeland said Justice Kennedy should not join the high-court panel in deciding the case because her speech was made to a group that helped raise money for an organization that promoted the law being challenged.

“She is not unbiased on this issue. She was the headliner at an event for an organization that promoted and lobbied for the law that is being challenged and is now before her court,” she said.

Justice Kennedy said in a statement that the speech was not a conflict and she will remain on the case.

“For the past 6 years, I have appeared at numerous civic organizations to speak about the founding of this republic, the Constitution, and the separation of powers. In December 2016, an individual who had heard me speak at two previous events invited me to speak to a civic organization he was affiliated with for breakfast. I treated that request in the same manner as I would treat any request,” the statement said.

The state Supreme Court earlier this week agreed to hear the Ohio attorney general’s appeal of last year’s decision blocking it from shuttering Capital Care Network because it lacks a  transfer agreement with a “local” hospital.

Capital Care, which runs a West Toledo clinic, won in Lucas County Common Pleas Court and Ohio’s 6th District Court of Appeals.

The clinic sued the state in 2014 after the Ohio Health Department rejected a written agreement it had with the University of Michigan Health System, which agreed to accept Capital Care’s nonemergency patients if they required further care after a procedure.

Ed Sitter, executive director of Greater Toledo Right to Life, said he asked Justice Kennedy to speak to the anti-abortion group in December. He said she talked about the Ohio Constitution and the relationship of the judicial system to the legislative and executive branches in a speech titled “The Judiciary and You.”

He said the demand made by Ms. Copeland for Justice Kennedy to recuse herself is “totally ludicrous.”

“We are not a party to this case. Greater Toledo Right to Life did not champion the state law being challenged. We have been involved in the law in the fact that the law has been violated,” he said. “I really don’t see any difference in than if she was speaking to the Rotary Club. She is a public official. We elect our judges. They have the right to go out and share with the public how government is supposed to work.”

Justice Kennedy’s campaign website says she was endorsed in 2014 by the Cincinnati Right to Life, Ohio Right to Life, and Ohio ProLife. She became a justice in 2012 to fill an unexpired term and was re-elected in November, 2014.

Ms. Copeland said Ohio Right to Life of Greater Cincinnati called into question the impartiality of a federal judge in 2014 because he served on a local Planned Parenthood board from 1986 to 1989.

Judge Timothy Black at the time was hearing a civil lawsuit against the state challenging the constitutionality of a law that banned abortion surgery centers from partnering with public hospitals and forced the Planned Parenthood clinic to end a long-standing patient-transfer agreement with the University of Cincinnati Medical Center. He later recused himself from the case.

Mike Gonidakis, president of Ohio Right to Life, said Justice Kennedy, by speaking to the organization, did not violate the judicial code of conduct.

“Of course, if she did do anything to impact her ability to be impartial she needs to consider stepping away from the case. By giving a speech, that does not impact your ability to remain neutral,” said Mr. Gonidakis, who is a lawyer.

Susan Martyn, a University of Toledo College of Law professor, said that if Justice Kennedy didn’t speak about the case then it doesn’t appear she did anything ethically wrong.

“I guess the issue here is whether an association with a group that has a definite viewpoint on the matter, she is putting herself in a position where her impartiality might be in question,” she said.

Contact Mark Reiter at: markreiter@theblade.com or 419-724-6199.

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